Robert Bork’s Tragedy

Even before Robert Bork died last month, he had achieved something close to martyrdom. In the quarter-century since the Senate rejected his Supreme Court nomination, successive generations of conservative lawyers and activists have carried the torch, depicting his defeat as an injustice of historic proportion. Following his death at the age of 85, liberals mostly maintained a respectful silence while conservatives dusted off old complaints about the conduct of the confirmation hearing and the unfairness, in their view, of the “borking” the nominee received. Clearly, the Bork Battle survives Bork.

No one who actually lived through the Senate Judiciary Committee hearing in September 1987 is without views on the subject, and I have previously offered mine. I think that the televised hearing, which held the country spellbound, provided a rare and valuable public seminar on the meaning of the Constitution, the methods of constitutional interpretation, and the different answers that competing methods offer to the most profound questions of individual autonomy and equality.

Indisputably, there was some exaggerated rhetoric, and certainly the hearing had its rough edges; as Judge Richard A. Posner observed in Slate last month, that’s politics, and a Supreme Court confirmation hearing is at its core a political event. But what “borking” really amounted to was holding the nominee’s vigorously expressed views up to the light for public inspection. In five days of testimony, then-Judge Bork – a former professor of mine whom I liked and respected – had every opportunity to make his case. His ideas were fully aired and considered. By a vote of 58 to 42, the senators, having heard from their constituents, concluded that his constricted constitutional vision, locked into the supposed “original intention” of the framers, was not what the country needed or wanted.

Some time after the Senate vote, I was invited to a conversation with Judge Bork at the offices of The New Republic magazine. He was hurting and angry. When my turn came to ask a question, I asked him whether, at any time during the hearing, he had felt that a member of the Judiciary Committee had met him on his own level in serious constitutional conversation.

“No,” he answered.

“Not even Arlen Specter?” I asked.

“Specter had his mind made up from the beginning,” he snapped.

I knew that wasn’t true, although Judge Bork clearly believed it. Senator Specter, a Pennsylvania Republican, had in fact agonized over his vote, as I knew from having talked with him almost daily. A Yale Law School graduate and former prosecutor, the senator went head to head with the nominee through several rounds of questioning, hours of mesmerizing constitutional debate in which he probed for any sign of flexibility in Judge Bork’s view that the entire course of modern constitutional law was profoundly mistaken. Finding none, Senator Specter, who had assumed at the start of the hearing that he would vote for confirmation, decided to vote No, fully recognizing the price he would pay within his own party. Five other Republicans followed. (Judge Bork and Senator Specter, whose paths crossed at such a significant moment in their lives, died within months of each other; Arlen Specter, who eventually became a Democrat, died in October at 82.)

At The New Republic gathering, I didn’t say anything to correct my old professor’s view that the hearing was a charade in which the fix was in from the start. Arlen Specter could speak for himself, it seemed to me. It was clear at that moment, and became only more so as the years passed, that Robert Bork couldn’t accept the legitimacy of his defeat. No one is entitled to a seat on the Supreme Court, of course, and many towering legal figures who never made it took their disappointment to the grave. Judge Bork was hardly unique in his sense of entitlement, but it ran so deep that it prevented him from understanding the obvious dynamic of what happened. Because he had been nominated to fill the “swing seat” vacated by Justice Lewis F. Powell Jr., a moderate conservative whose retirement left nearly every issue of constitutional moment hanging in the balance, his nomination became a public referendum on whether the court should move decisively to the right or stay basically the same. The status quo won out. It’s evident in retrospect how much would have been different had Robert Bork been sitting all these years in the seat that President Reagan intended for him and that Anthony M. Kennedy finally assumed in February 1988. It was pretty clear back then, too. Justice Kennedy – then, like Judge Bork, a federal court of appeals judge — was confirmed unanimously.

As the confirmation hearing has come down in history, Judge Bork’s comment that serving on the Supreme Court would be an “intellectual feast” is what many people remember; it sounded so arrogant when it was, I think, rather refreshingly honest. A less famous but more telling moment took place earlier, during a colloquy with Senator Orrin Hatch, a Republican from Utah. It was Senator Hatch’s daunting task to show that the nominee was not the extremist his opponents had described, but rather a person of comfortably mainstream views. To that end, the senator read a series of quotations from liberal-to-moderate law professors who, like Judge Bork, had criticized Roe v. Wade, the 1973 abortion decision. The names of the critics read like a legal establishment hall of fame.

Finally, Senator Hatch served up what sounded like a concluding, softball question:

“In your lengthy constitutional studies, is there any Supreme Court decision that has stirred more controversy or criticism amongst scholars and citizens than that particular case?”

Then came the unexpected answer:

“I suppose the only candidate for that, Senator, would be Brown v. Board of Education.”

The moment passed quickly, but it’s worth unpacking that deeply revealing exchange. As Senator Hatch immediately grasped, the nominee had violated a cardinal rule of modern judicial confirmation hearings, which is that Brown v. Board of Education is beyond debate. The 1954 school desegregation ruling was in fact the subject of substantial criticism within the legal academy in the 1950s and well into the 1960s; some eminent professors, while endorsing the outcome, took strong issue with the court’s analytical method. Awareness of the rich critical literature from that period had faded away by 1987, effaced by the decision’s celebrated unanimity and moral weight. So while Judge Bork’s answer to Senator Hatch was historically accurate, it was an obtuse accuracy. More to the point was how the moral dimension seemed to elude him as he tossed Brown into the same box with the abortion decision of which he had been so scathingly dismissive.

I should explain this column’s title, “Robert Bork’s Tragedy.” I see him as a tragic figure: not because he was dealt an unjust hand – he wasn’t – but because of his inability to understand what happened. He spent his final decades surrounded by acolytes who stoked his sense of victimhood, and there seemed to be no one around him to provide a reality check as his rants about the Supreme Court’s depredations and the collapse of Western civilization (he portrayed the two as inextricably linked) became ever more extravagant. (In a symbolic gesture aimed at the Republican base, Mitt Romney named him co-chair of his campaign advisory committee on law.)

“A Country I Do Not Recognize,” a book he edited in 2005, found him plunging ever deeper into the culture wars, with the Supreme Court as his main target. His introductory essay charged that “the Supreme Court’s unconstitutional rulings” were “an attempt to remake society and thus to remake man himself.” He complained about the court’s embrace of “radical individualism” and its “destruction of taboos about vile language.” He wrote, “Our culture’s abandonment of a sense of the sacred, an abandonment greatly facilitated by the Supreme Court, is a heavy loss,” adding in a tone of angry despair: “Almost every value, every virtue, every symbol, and every institution that was once taken as sacred, not to be overthrown in practice, has now been overthrown or is in question.”

In 2010, he declared his opposition to Elena Kagan’s Supreme Court nomination, bafflingly calling her admiration for Aharon Barak, the distinguished former president of Israel’s Supreme Court, “disqualifying in and of itself.” Ms. Kagan had described the Israeli judge, internationally known for his human rights decisions, as her “judicial hero.” But to Judge Bork, Justice Barak was “the worst judge on the planet.” (He had an odd fixation about Justice Barak, devoting a chapter of a 2003 book, “Coercing Virtue: The Worldwide Rule of Judges,” to an attack on him and on the court he led. The Israeli Supreme Court displayed an “addiction to universal values” that was subverting the Jewish character of the Israeli state, Judge Bork complained.)

It’s tempting to suppose that only the bitterness of defeat drove a once cheerfully combative iconoclast to the apocalyptic rhetoric that defined his subsequent writing and speeches. Perhaps he saw himself as the one who might have kept his finger in the dike, holding back the inexorable tides of ever expanding notions of equality that he feared so deeply. In fact, his record suggests that the pre- and post-nomination Robert Bork were one and the same, with the later version simply having lost the need for discretion. So perhaps his defeat didn’t so much change him as free him from inhibition.

When the Senate rejected his backward-looking vision and instead embraced Anthony Kennedy, who praised the Constitution’s framers for having made “a covenant with the future,” it was no tragedy for the country. But it was for a man, and it’s important to know the difference.

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Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The New York Times from 1978 to 2008. She teaches at Yale Law School and is the author most recently of the book “The U.S. Supreme Court: A Very Short Introduction,” as well as a biography of Justice Harry A. Blackmun, “Becoming Justice Blackmun.” She is also the co-author, with Reva B. Siegel, of “Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling.”